By Andrew Westney

Law360 (September 8, 2020, 9:26 PM EDT) -- The U.S. Census Bureau told a California federal court Tuesday that it was gearing up its operations again to comply with the court's decision over the weekend to grant a temporary restraining order to civil rights groups, tribes and municipalities that claim the agency's plan to shorten the census isn't constitutional.

U.S. District Judge Lucy H. Koh on Saturday issued the TRO requested by the National Urban League, Los Angeles, the Navajo Nation, Gila River Indian Community and others, saying the Census Bureau and the U.S. Department of Commerce can't implement what they call a "replan," introduced in early August to compress about 8½ months of data collection and processing into just 4½ months.

The Census Bureau and the Commerce department said in their notice Tuesday that they had sent agency officials on Sunday "a detailed list of instructions … regarding what steps the field offices must take and what they must refrain from doing to comply with the TRO."

Those steps include retaining census enumerators and other employees and making several more attempts to obtain certain data after those efforts were scaled back sharply in the Aug. 3 plan, according to the notice.

The agency also asked the court to convert the TRO into a preliminary injunction right away "to afford adequate time for any appellate review" if the judge "intends to extend the TRO or otherwise believes that the effect of the TRO lasts beyond September 17," when a hearing on the preliminary injunction request is scheduled.

In Saturday's order, Judge Koh said that the "balance of hardships tips sharply in favor of plaintiffs" and that they had sufficiently alleged irreparable harm.

"Because the decennial census is at issue here, an inaccurate count would not be remedied for another decade, which would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources for a decade," the judge said. "Similar harms have thus justified equitable relief in previous census litigation."

In April, as the coronavirus pandemic spread across the country, the Census Bureau revised its operational plan for the 2020 census to account for both the difficulties of census-taking during a pandemic and the bureau's duty to take a fair and accurate count, according to the Aug. 18 complaint by municipalities in California, Texas and Washington as well as civil rights organizations and tribes.

Under the COVID-19 Plan, the bureau and the Commerce Department decided to delay the counting process, shift the time frame for conducting and completing the data collection operation, and increase the time for gathering data, according to the suit.

But on Aug. 3, the agencies reversed course and implemented their changed plan, which the plaintiffs say ignores the monthslong delay in census data collection caused by the pandemic and compels a final date for delivering the data that bureau officials have repeatedly said they can't meet, according to the suit.

The plaintiffs claimed that "the federal government's attempt to rush the census count poses a grave threat to all the vital functions that rely on census data," the suit says. "Undercounted cities, counties, and municipalities will lose representation in Congress and tens of millions of dollars in funding. And communities of color will lose core political power and vital services."

The plaintiffs seek to vacate the revised plan and reinstate the original plan.

In her order Saturday, Judge Koh prevented the agency from putting its August plan into effect, including "winding down or altering any Census field operations" before the Sept. 17 hearing.

The judge said there were "serious questions as to whether the Replan was arbitrary and capricious in violation of the [Administrative Procedure Act]," as well as questions about the plaintiffs' standing and whether the plan is a final agency action that can be challenged under the law.

The only evidence the bureau put forward against granting a TRO was a declaration from an agency official, Associate Director for Decennial Census Programs Albert E. Fontenot Jr., that "underscores plaintiffs' claims of irreparable harm" by indicating that the agency is "terminating field staff now and will have difficulty rehiring such staff," the judge said.

And while the agency has said that the revised plan was meant to allow the bureau to provide the count to President Donald Trump by the end of the year instead of the end of April 2021, Fontenot has already said that that the earlier deadline can't be met, according to the order.

Latham & Watkins partner Sadik Huseny, whose firm represents the plaintiffs, said in a statement Tuesday that the judge's order "helps ensure that robust Census field operations will continue" until the Sept. 17 hearing

"Conducting a full count throughout this critical period, and beyond, is paramount in ensuring the accuracy of the 2020 Census, and we look forward to addressing these issues further" at the hearing, Huseny said.

Gila River Indian Community Gov. Stephen Roe Lewis said in a statement Saturday that the tribe "did not want to have to sue the United States to ensure we have time to get our census count up to the levels it should be, but are prepared to take the action necessary to protect all of our interest in an accurate census count."

Donald R. Pongrace of Akin Gump Strauss Hauer & Feld LLP, which represents Gila River in the case, told Law360 on Tuesday that the "big question" in the litigation is just what the government's "replan" actually is.

"What is remarkable about this case is there is no single document that the United States calls the 'replan,'" Pongrace said. "We haven't seen the replan. It doesn't exist as best we can tell, or if it does, we're not sure exactly where we can find it," making it difficult to figure out to what extent the Census Bureau has changed its practices from its April plan and how it might go about putting its earlier practices back in place to comply with the judge's order, he said.

Representatives for the Commerce Department and the Census Bureau did not immediately respond to requests for comment Tuesday.

The National Urban League; the League of Women Voters; the Black Alliance for Just Immigration; Harris County, Texas and Commissioners Rodney Ellis and Adrian Garcia; San Jose, California; King County, Washington; and the Navajo Nation are represented by Latham & Watkins LLP, the Lawyer's Committee for Civil Rights Under Law, and the Brennan Center for Justice.

The Navajo Nation is also represented by Attorney General Doreen McPaul and Jason Searle of the Navajo Nation Department of Justice.

The Gila River Indian Community is represented by Donald R. Pongrace and Dario J. Frommer of Akin Gump Strauss Hauer & Feld LLP.

San Jose is additionally represented by Mark Rosenbaum of Public Counsel.

Los Angeles is represented by Michael N. Feuer, Kathleen Kenealy, Danielle Goldstein and Michael Dundas of the city attorney's office.

Salinas, California is represented by Christopher A. Callihan and Michael Mutalipassi of the city attorney's office.

The federal government is represented by Jeffrey Bossert Clark, David Morrell, Alexander K. Haas, Diane Kelleher, Brad P. Rosenberg, and trial attorneys Alexander V. Sverdlov and M. Andrew Zee of the U.S. Department Of Justice, Civil Division, Federal Programs Branch.

The suit is National Urban League et al. v. Wilbur L. Ross Jr. et al., case number 5:20-cv-05799, in the U.S. District Court for the Northern District of California.

--Additional reporting by Suzanne Monyak and Lauren Berg. Editing by Peter Rozovsky.

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